Jose M. Bejar, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 16, 2002
05A20018 (E.E.O.C. Sep. 16, 2002)

05A20018

09-16-2002

Jose M. Bejar, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Jose M. Bejar v. Department of Veterans Affairs

05A20018

September 16, 2002

.

Jose M. Bejar,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Request No. 05A20018

Appeal No. 01A13912

Agency No. 200M31

DENIAL OF REQUEST FOR RECONSIDERATION

Jose M. Bejar (complainant) timely initiated a request to the Equal

Employment Opportunity Commission (EEOC or Commission) to reconsider the

decision in Jose M. Bejar v. Department of Veterans Affairs, EEOC Appeal

No. 01A13912 (September 14, 2001). EEOC Regulations provide that the

Commission may, in its discretion, reconsider any previous Commission

decision where the requesting party demonstrates that: (1) the appellate

decision involved a clearly erroneous interpretation of material fact

or law; or (2) the appellate decision will have a substantial impact on

the policies, practices, or operations of the agency. See 29 C.F.R. �

1614.405(b).

After a review of complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that

the request fails to meet the criteria of 29 C.F.R. � 1614.405(b).

Complainant alleged that he was discriminated against on the bases of race

(Hispanic), national origin (Ecuador), and in retaliation for prior EEO

activity when his request for reassignment to another office was denied.

The previous decision affirmed a final agency decision finding of no

discrimination. In his request for reconsideration, complainant argues

that the agency incorrectly concluded that the agency's action did not

constitute harassment. According to complainant

. . . the classification of an incident as an act of harassment is [in]

the eyes of the complainant. Somebody else may have a different opinion

about classifying that specific incident as an act of harassment, however,

the opinion of the complainant stands.

Complainant's position is incorrect as a matter of law. It is not for

him unilaterally to decide whether he has been harassed. The question is

not simply whether complainant subjectively believed that he was being

harassed when he was denied the office of his choice. In addition

it must be determined whether a reasonable person in complainant's

circumstances would have felt that way. See Enforcement Guidance on

Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).

We see no reason to reconsider the previous decision's affirmance of

the agency's resolution of that issue.

For the foregoing reasons, it is the decision of the Commission

to deny the request. The decision in EEOC Appeal No. 01A13912

remains the Commission's final decision. There is no further right of

administrative appeal on the decision of the Commission on this request

for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. You have the

right to file a civil action in an appropriate United States District

Court within ninety (90) calendar days from the date that you receive this

decision. If you file a civil action, you must name as the defendant in

the complaint the person who is the official agency head or department

head, identifying that person by his or her full name and official title.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 16, 2002

__________________

Date